A Free Press Can Bury the News, Too
(Bloomberg Opinion) -- Did the National Enquirer have a right to buy stories about Donald Trump in order not to publish them? And if so, what was the crime in buying Karen McDougal’s report of an affair with now-President Trump — a crime to which Michael Cohen pleaded guilty?
These questions have become all the more pressing as it has emerged that the Enquirer has been buying and hiding Trump’s stories for decades. In fact Cohen, Trump’s former lawyer, had wanted to buy the whole archive for Trump to make sure that the stories stayed dead.
Start with the right not to publish. In the U.S., the press’s right to publish whichever stories it chooses includes the right not to publish whichever stories it chooses. The government can’t be in the business of forcing newspapers to publish stories against their will.
What’s more, the legal system generally recognizes that individuals may tell others, including newspapers, that they have the right to publish or not publish their stories. It follows that the Enquirer was within its rights when it bought Trump’s stories, chose not to publish them, and prevented others from doing so — at least so long as Trump was not a candidate for office.
If this sounds strange to you, that’s probably because you have the general sense that the First Amendment is meant in part to promote the public interest in the spread of information. It seems perverse that a media company could use it to suppress information.
But the legal truth is that there is no fundamental public right to know all information. The First Amendment protects free speech and a free press. Both of these rights belong to the speaker, not to the public.
As a consequence, the Enquirer and its parent company, American Media, had the right to do what they did. All that changed, though, when Trump became a candidate for office. The Enquirer still had the right to choose what it wanted to publish — or not — about Trump. But it also had the obligation to follow the law about campaign contributions, and that’s where it got into trouble.
If the Enquirer’s purchase of news was intended specifically to help Trump get elected and coordinated with his campaign — and it was, according to prosecutors and Cohen — then the Enquirer was spending money not for journalistic purposes but rather to help Trump get elected. That counts as a campaign contribution. Because the Enquirer is a corporation, the unreported, unacknowledged donation was unlawful.
But pretend for a moment that Cohen and the campaign weren’t involved. If the Enquirer was already in the habit of buying and killing stories to help Trump, then its purchase of the McDougal story might look like just a continuation of this longtime practice, not a campaign contribution. Newspapers, after all, are allowed to help candidates in other ways without it counting as a campaign contribution. For example, the Enquirer could have published — and did — stories supporting Trump and attacking Hillary Clinton. Those did not count as a campaign contribution, even if they helped Trump. Indeed, newspapers are generally exempt from some aspects of campaign-finance law to protect exactly these types of lawful speech.
To push this argument even further: Cohen’s plan to buy the whole Trump archive from the newspaper would probably have been legal, even if the campaign itself paid for it. Campaigns buy advertisements from news organizations all the time, so they should have the right to buy stories as well, as long as they pay a fair-market price. The only conceivable criminal angle would have been if the purchase was a personal expense for Trump and he charged the campaign for it. But that would seem not to be the case, since Trump never felt the need to buy the stories before he ran for office.
The difference here, of course, is that Cohen wasn’t proposing that the Trump campaign buy the stories. He was proposing that the Trump Organization buy them, in secret, presumably with himself as the middle man. If the Trump Organization had bought the archive but not reported the expense, that would have been a campaign-finance violation. And if Cohen had made the payments himself, as he did for the Stormy Daniels story, then he would have been guilty of an illegal campaign contribution to Trump. Even if Trump made the payments personally, he would have been obligated by law to report the expense.
All that said, this focus on campaign-finance law feels narrow, especially when the basic facts of this story are so shocking: For years a newspaper was secretly helping Trump hide unpleasant stories. Even when he became a candidate for the nation’s highest elected office, that practice continued. In any normal world, that alone would be enough to cast the president and the paper into the shadow of deep scandal. In the world we actually have, the technical legality of it all is up for debate.
It’s always worth getting the law right. So yes, a free press can suppress stories. But it can’t do it in coordination with a campaign, and for its benefit.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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